George Wright keeps his eye on emerging technology trends and figures out how they impact life and business.

The Apple versus Samsung patent battle has moved to the next stage of litigation tomfoolery with a US jury finding that Samsung has wilfully infringed on more than one of Apple’s smartphone patents. The damages have been set at just over $US1 billion. What the eventual outcome and damages will be is really yet to be determined since appeals will follow.

This battle is being fought in many jurisdictions but the California ruling has implications for the Android platform as a whole. Apple has certainly demonstrated a willingness to take all and sundry to court in order to protect its product and block its biggest threat.

This is open patent warfare and there does not seem to be an end in sight as eventually everyone will have to pick a side, pay up or fight.

In the big end of town, patent portfolios have long been pooled as a form of protection against other large competitors. This mutually assured destruction has been a feature of technology companies trying to keep each other in check.

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One of the problems with the current scenario is that patents in the software world are being awarded to sometimes trivial and vague “inventions” or even to inventors that have no intention of actually implementing the invention.

In a recent blog post, Minecraft creator Markus “Notch” Persson remarked: “...one of the biggest problems with patents; there is no good safe way to find out if any idea you come up with is patented or not. Most other crimes require intent, patent infringement does not.” The amazing rags to riches story of Minecraft has meant that its creator has become a juicy target for patent roulette and this might be one of the things that keeps Persson awake at night. Persson’s company Mojang has itself been recently in a trademark tussle with Bethesda over the use of the term “Scrolls”.

Persson’s comments, while not directly related to Apple or Samsung, have sat with me uncomfortably. The entertainment factor of the likes of Apple, Microsoft and Google fighting each other internationally in high-profile court battles can overshadow the issues for single or small development studios. The more these tactics become standard practice, the more individual developers have to pay attention and the more fear, uncertainty and doubt can be leveraged against them in the guise of the patent bogyman.

The validity of a patent is usually determined after the fact by the courts. The heart of the concern is that small developers who are industriously working away on their products and services could have this lingering fear that they may in the future face a patent claim. Even searching against the database of patents may turn up nothing concrete depending on how specific the patents in that area are and how diligent their search is. Ignorance, in this case, is not bliss.

The reverse is true as well. You have managed to patent one of your inventions but until it is confirmed in court, how certain can you actually be? For how long are you willing to fight and how much are you willing to spend to keep the fight going if it does get there?

Even prior art defences are not a sure thing as so much hinges on interpretation. More and more software developers have to become aware of what their influences are.

It seems that the prevailing wisdom is that the best defence is a good offence. Patent first and hope that in the future if anything happens the courts see it your way. This strategy only adds to the volume of patents that a young developer may be infringing on. Adding to the uncertainty is that patent claims don’t have to be enforced in an immediate timeframe (up until they expire), unlike trademarks. So a law action is as much about strategy as it is about timing. The ability to sell and trade patents and create cross-licensing deals also means that competitors to your products and services may one day acquire patents that were previously held by a neutral entity and use them solely against you.

In other words, it is no longer just about competing on who has the best product, brand and marketing; there is also the possibility of using the courts and patent system as a market force. In reality, it has probably been this way for a long time but the implications for small development studios who may fall foul of large multinationals' patent portfolios is huge. They are looking on at the Apple and Samsung case with rapt interest.

When you start a new project, how much has the current patent climate affect what and how you develop?

23 comments so far

What are the requirements of a look and feel patent? Actually they don't matter. A bias judge is most important but we have so many judges. Well, perhaps companies need to influence consumers to organize and sue courts and those patent authorities as the root cause. How can you sue against the grand of a look and feel patent for their smell, color, weight, size ... touch, and even allergic sensations? You can't unless you have a lot of angry people and they periodically organize protests.

Commenter

Beancube2010

Location

Date and time

September 03, 2012, 9:03AM

How has anything changed?

Don't willfully copy another persons work, and you will be fine.Something Samsung learnt the hard way.

The problem is with patent trolls.

Commenter

ij

Location

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September 03, 2012, 9:32AM

No, the problem is with patents... particularly the vague, fuzzy, yes-you-invented-everything-sue-sue-sue kind of patents routinely awarded by the US patent office. Samsung learnt the hard way? I'm pretty sure there are multiple lawsuits raging in multiple countries, and certainly not everything is going Apple's way. I'm not a samsung fanboy... don't even own one... but I am a software developer, and the current system is a disgrace. The only upside is that these two companies hate each other, so the chances of a cross-licensing deal are slim. The result is the patent system itself and the power and influence of the US courts is now being openly questioned, as it should be.

Commenter

joe IT

Location

Ballarat

Date and time

September 03, 2012, 10:16AM

I'd say the problem is with a patent system that allows such vague and broad sweeping patents. A patent system that allows companied to hold patents on things they clearly did not invent, or on colours and shapes of devices. A patent system that can be used to stifle competition in the market place, instead of encourage it.

The patent system was originally designed to encourage innovation, it's clearly not doing that.

Commenter

Bob

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September 03, 2012, 9:28PM

@ Joe IT. There is no vague fuzziness if you know exactly what you are talking about.

Commenter

Griffo

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September 04, 2012, 5:09AM

The patents in question were very specific. Samsung could easily have avoided them, but decided not to. It did this for economic reasons - by copying Apple it became the most successful Android phone maker.

They are all playing by the same rules, so Samsung has only itself to blame for the mess it is in.

Commenter

ij

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Date and time

September 04, 2012, 5:30AM

You mean like Apple copying Xerox Park?

Commenter

Lee

Location

Carlton

Date and time

September 04, 2012, 6:24AM

The Apple war against Samsung isn't about really copying really, since Apple has copied so much of its IP from earlier developments & other people - it is purely about competition, something that Apple hates and doesn't know how to handle. Android based devices are proving to be very successful, and have overtaken Apple's short-term dominance of the mobile market. Apple wants to use its financial muscle to frighten off the competition, and seems to have found a friendly judge in the US to help.

It is ridiculous that a patent system should allow restrictions on the shape of a device [rectangular with rounded corners] and the way a person uses their hands or fingers to do something. These are not designs or inventions, or even processes, and should not be subject to any restriction whatsoever. The idea of restricting something for its apparent similarity to another product is also absurd - cars look like each other, as do TVs, fridges, and thousands of other products. Why should Apple be able to monopolise any of these similarities?

Commenter

WillD

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September 03, 2012, 11:14AM

I'm afraid the shape of a device IS a design according to the law. I see industrial designers going red in the face with rage. If a designer creates a new and distinctive design why shouldn't they retain the right to exploit it? Few doubt that the design of Apple products are behind their success. If they copied this from someone else, that someone else should have registered the design first and sued Apple.Cars, TVs and fridges are all capable of being registered as designs. Designs law dates back to at least the 1906 Act in AU so the designs office and courts are very experienced at determining what designs are ‘substantially similar’. i.e. they do not look like each other under the law. Also, it is important to note that US design patents (or registered designs here) attract a shorter term of protection than (utility) patents.

Commenter

schroding

Location

VIC

Date and time

September 03, 2012, 6:49PM

Couldn't agree more with WillD. Next thing you know, Apple will be suing van-manufacturing companies because you have to "slide-to-unlock" their doors!